Outline of Sources of public international law
Sources of public international law (International Law Frameworks—handout)
1. International level
a. Primary sources:
i. Treaty (focus of the class)
ii. International Organizations (focus of the class)
iv. General principals
b. Secondary sources:
i. Judicial decisions
ii. Teachings of publicists
c. Each of the above international law must rest on CONSENT.
2. Domestic level
a. Primary sources
b. Secondary sources:
ii. Law journal articles
1. 2 elements (have to have both)
a. Material dimension (state practice): followed as a “general practice”
b. Psychological dimension (opinion juris): has been accepted as law
i. Statements made by state officials.
ii. Documents of International Organizations .
iii. Municipal courts’ opinion
2. Problem with customary law:
b. Recurrent and general state practice? How many countries need to consent (187 v. 2 enough?)
General Principles of Law
1. Common principles across the legal system of civilized nations.
a. E.g. estoppel, res judicarta, evidentiary standard and procedural rules.
2. Problem: even if there’s general principle, the concise/specific rule is not common. Less specific à less useful.
1. Definition of treaty—4 elements:
a. International agreement
b. concluded b/w states
c. in written form
d. governed by international law (not national law).
i. E.g. Commercial law : if US agreed to sell wheat/plane to France à NOT a treaty! Because not governed by international law.
2. International definition of treaty is different from US definition of treaty.
a. International treaty: more than 95% of Treaties are created by exchange of letters b/w government officials representing the intent of their nation.
b. US definition of treaty: all the agreement sent to the Senate for 2/3 approval becomes supreme law of the land (Art. II of Constitution).
i. Everything that is not an Art. II treaty is not a treaty, but either an executive agreement (only signed by the President/ambassador/cabinet administrator: Belmont), or Congressional-Executive Agreement.
3. Process of making a treaty (handout 1 P. 30)
a. Know who has the authority to make the treaty.
i. Heads of state can bind a state in a treaty on any subject.
ii. A cabinet member can bind a nation on topics within their portfolio.
iii. Ambassadors can bind a nation by their enumerated (full) powers.
b. What does an authorized agent do?
i. All the governmental agencies concerned by the issue discuss the issue and give written instruction to the representative to negotiate, draft, and sign the treaty.
c. Ratify by domestic legal system.
d. Making “reservations” to the agreement
4. Interpretation of treaty:
a. Main purpose of the treaty.
5. Effect of a treaty:
a. Some Treaties have direct effect on international affairs (e.g. UN Convention on …, has direct effect on member countries. World Bank Arbitration Rules,, NAFTA, ISO, World Bank rules on international project finance).
b. Transposition (transpose)
i. Treaty is a K b/w governments. E.g. WTO-TRIPS agreement: patent is protected for 20 years. Doesn’t have direct effect. Effect: countries who signed should establish a patent office/statute. The litigation parties can only rely on domestic statute, not the international treaty.
6. VCLT ( Vienna Convention on the Law of Treaties ):
a. US is not a party, but accept the treaty by custom.
1. Meet the consent requirement: member countries agree to create the organization in the first place.
2. GAAP/WTO: parties, through joint action, legislate new obligations.
1. Only bind the parties to the dispute.
2. No stare decisis effect in international law. But very persuasive authority.
a. Reason: not all legal systems have the notion of stare decisis.
i. England (strongest) > US > German > French (no such notion)
Teachings of Publicists (like law review articles)
Not binding, only persuasive.
Domestic Level: Domestic law: treaty forms and status in U.S. law
Status of treaty in US law
1. Direct effects on US legal systems? (Monist v. Dualist system)
2. Which prevails if the treaty conflicts with the supreme law? State law ? Statutes? Constitution?
Form of treaty in US law
1. 3 categories of treaties:
b. Executive agreement
c. Congressional executive agreement
More about this outline:
Sources of International Law:
create reciprocal legal obligations among or between the parties.
Generally also include remedies, or rights of retaliation in the event of breach.
Vienna Convention on the Law of Treaties : treaties must be honored in good faith.
So important that a state’s domestic law cannot be a defense against a charge of breach of an international treaty (look to the Supremacy Clause).
general practice accepted as law
a sense of legal obligation, or opinion juris
evidence taken to establish custom, including
i. laws, Constitutions , and high courts of the various countries
iii. writings of publicists
iv. resolutions and declarations, as in the UN
v. decisions of international tribunals
vi. restatements of customary law
general principles of law recognized by civilized nations
recognition that some principles are so “basic” as to be recognized in international forums.
A “comparative” element to international obligations.
other judicial decisions, scholarly writings, etc. as subsidiary means of determination of law.
A “soft” form of law?
i. Based on blending of treaty and custom and the proliferation of new sources of international law
ii. Generally may be guideposts of greater or lesser persuasive value in determining law’s trajectory.
State: could traditionally be the only subjects of international law.
No centralized process for determining what constitutes a “state”
Rise of intergovernmental organizations and regional integration of states is breaking down this traditional assumption.
Other forces pushing in opposite direction, urged by separatist movements by indigenous peoples and ethnic minorities.
Intergovernmental Organizations: now routinely address substantive issues of law that previously were entirely domain of states.
Provide a forum for the progressive development and Codification of international law.
Have contributed to the blurring of the distinction between treaty and custom.
i. I.e. legal work product of WTO or the Organization for Security and Cooperation in Europe.
Individuals: Matter of concern only of states prior to expansion of international human rights after WWII.
Earlier concept that injury to an alien was injury to her state of nationality.
i. State had to demonstrate real and effective links to the individual to assert a claim.
no recognition of rights in international forums simply for being human.
Also now recognition of individual responsibility
Private parties can now routinely use domestic courts to enforce international rules.
Non-governmental organizations (NGO’s): play lobbying roles in various areas of law.
Direct action, especially in international environmental law.
Some now given consultative powers, as de facto sources for reliable information.
International Law in United States:
-a dualistic system, where status of norm internationally not necessarily related to its status domestically.
-Congress can legislate in derogation of international norms.
Treaties/Executive Agreements: Supreme Court has provided that where treaty conflicts with domestic law, later in time prevails (thus treaties can and do make up part of our domestic law, equal in status to statutes enacted by Congress).
-Self-executing treaty doctrine: becomes law in the United States once it enters into force internationally.
-as opposed to non-self-executing, requiring additional legislation to implement it domestically.
-courts careful in their roles interpreting treaties (since there is no power for judicial treaty-making), leading to plain-meaning interpretations.
Customary International Law : Paquete Habana: absent treaty or other controlling executive or legislative act or judicial decision, look to the customs and usage of other nations. Thus such law may be “incorporated” into US law.
-further look to interpretations of statutes as enacted by Congress to, where possible, avoid construction that would violate the law of nations. Charming Betsy.
Doctrines of Restraint: international disputes often raise prudential concerns, complicating economic or political relations.
-led to development of doctrines rooted in constitutional law, federal statutes, Common law , treaties, custom, and international comity.
1. Foreign Sovereign Immunity: empowers courts to establish a rebuttable presumption that a state is immune from suit, meaning courts lack subject-matter jurisdiction over the claim.
2. Act of State: Courts bar themselves from determining the validity of the actions of a foreign government taken within its own territory.
3. Political Question: Obliges courts to abstain in a variety of cases where there has been a constitutional commitment of the question to a political department.
4. Immunities of Diffidence: Head-of-State and Diplomatic. Lack statutory prerogatives under FSIA and other immunity doctrines, but judge-made attempts to defer to the political branches. Common law powers balance the opportunities to embarrass foreign nations or state department with possibility of embarrassment of separation of powers in preventing applications of clear international law.
Filartiga v. Pena-Irala (2d. Cir. 1980)
Suit by American nationals against Paraguayan national for alleged murder of their son (through torture), in retaliation for speaking out against the Paraguayan government. Find out Pena was in US, tries to first get him deported and then serve him with a civil suit while in INS custody in Brooklyn. Question of whether suit must be brought in Paraguay. Jurisdictional umbrella through USC §1350 (ATC–suits by aliens in tort for violations of law of nations or US treaties). Court finds jurisdiction in this case is established by international norms composing torture as a violation of the law of nations. Look partially to UN Declaration on Human Rights and Declaration against Torture (international accords), and specific laws of countries showing ‘custom’, for support of proposition.
-court points out that international law, as observed by custom, is an ever-evolving collection of legal principles.
-court also sought views of State Dept. before ruling on the issue
-may be a meaningless exercise, since judgment will not be able to be collected in US—no US assets.
Marble Ceramic (11th Cir. 1998)
Sale agreement between tile retailers and manufacturers. Agreement in Italian, retailers says doesn’t understand all breach conditions even though they signed it. Dispute after defendant failed to deliver, defendant argued any responsibility to deliver ended when plaintiff defaulted on earlier payments. Argued there was never intent of terms on back of form to bind the contractual agreement between parties. Standard diversity case, so gets into federal court. Treaty between the United States and Italy governs CISG (so under terms of US Constitution, the treaty becomes part of US law—as if Congress had passed the statute). CISG does not apply Parol Evidence Rule , unlike state contract law (so not bound by terms of contract on paper) and therefore case survives summary judgment against plaintiffs.
-international law here was powerful enough to overrule years of domestic common law establishing the Parol Evidence Rule ! By supremacy clause, international treaties of this sort overrule State law of contracts.
-but CISG would only apply as a treaty to all those countries who were signatories—could not completely replace UCC absent another treaty
-similarly, choice of law clauses would allow parties to opt out of conditions within a treaty.
Party sues the United States due to capture in Mexico and kidnapping to US by DEA. Agreement to then try the party in the United States (done in response to drug torture of a DEA agent, of which plaintiff Alvarez was presumably involved). Could not enter into extradition agreement because MX didn’t cooperate. After evidence bad and charges against Alvarez dropped, sues in federal court on civil action. FTCA and ATS suits. FTCA question of foreign country exception. Court doesn’t buy headquarters exception to exception and bars FTCA claim against US. ATS claim against kidnapper has questions about allowable cause of action. Court finds in this case that international law could provide ATCA cause of action as under Filartiga, but here international law does not support granting jurisdiction since there is not widely accepted bar on brief detentions through the law of nations, but here there is disagreement as to why (multiple opinions). Therefore, cannot sue under ATCA.
-Foreign country exception? Probably done for foreign policy reasons to wall off actions outside the United States (like suits due to military action, etc.). Also possibility that it would subject US courts to choice of law problems of foreign countries.
-Supreme Court had upheld the ability of states to ‘domestically’ kidnap in cases where states wouldn’t agree to bring forth suspects on charges in other states. This case merely extended already legal actions to the international arena.
How to understand these three cases? Filartiga stands for application of international norms, and in Marble Ceramic Center a US company is being rescued by international agreements that limit the availability of parol evidence. In Alvarez-Machain, international law is recognized for creating cause of action under ATCA, but specific facts of case did not warrant the claim (wrongful temporary detention).
About the Author/s and Rewiever/s
References and Further Reading
About the Author/s and Reviewer/s
Mentioned in these Entries
About the Origins and Sources of International Law, Historical, Codification, Commercial law, Common law, Constitutions, Customary International Law, Guides to Sources of Basic Legislation, International Organizations, Parol Evidence Rule, State law, Treaties, country.
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